“What do they know about Negroes? You can’t name one member of this court who knows anything about Negroes before he came to this court.” So said Justice Thurgood Marshall, the first black justice to serve on the Supreme Court, as he reflected in 1990 on his Supreme Court career. Marshall was lamenting his failure to convince his colleagues to rule more favorably toward the interests of racial minorities—even though he changed the way the white justices thought about some race-related issues. “Marshall could be a persuasive force just by sitting there,” said Justice Antonin Scalia, adding: “He wouldn’t have to open his mouth to affect the nature of the” justices’ deliberations in cases involving race.
My article, “Racial Diversity and Judicial Influence on Appellate Courts”, suggests that Justice Marshall may have been overly pessimistic, and that Justice Scalia accurately captures an important effect of judicial diversity on appellate courts. Since the diversification of the federal bench began in earnest in the 1970s, scholars have sought to examine how the addition of women and minorities to the bench influence what federal courts do—especially in cases related to race or gender. My article examines how judicial diversity on three-judge panels of the Courts of Appeals—the level of the federal judiciary below the Supreme Court—affects decision making in affirmative action cases. Because black judges only make up about 10% of the judges on the Courts of Appeals, only rarely do they comprise a majority of a three-judge panel. As a result, whether judicial diversity has large-scale consequences depends not on whether black judges vote differently from white judges, but on whether black judges influence their white colleagues to vote differently.
I find that black judges are much more likely to rule in favor of affirmative action programs than white judges. This is perhaps not surprising, given that black Americans have tended to support such programs much more than white Americans. More surprisingly, I find that the assignment of a single black judge to a panel that would otherwise consist of three white judges significantly increases the probability that the white judges will support an affirmative action program. When white judges decide affirmative action cases alone, they uphold the program 50% of the time. When white judges sit with a single black colleague, they uphold the program 80% of the time. In turn, the assignment of a black judge to the panel virtually ensures that a case will be decided in favor of the affirmative action program—a striking result given that many such programs have been found unconstitutional by federal courts.
While my article only looks at racial diversity, these results suggest that other types of diversity may play a large role in judicial decision making. (Indeed other scholars have found similar effects from the assignment of a female judge to an otherwise all-male panel in sex discrimination cases.) These include what organizational scientists call “deep-level” diversity, which come into play on dimensions such as cognition, tools, and ability. Indeed, the two most recent Supreme Court vacancies have seen calls to increase the deep-level diversity on the Court by selecting justices who are not sitting federal judges with Ivy League law degrees and based in the Northeast. While appointments to the Courts of Appeals receive less attention than those to the Supreme Court, my article suggests that the effects of diversity on the Courts of Appeals extend far beyond what we can observe and immediately measure.
About the Author: Jonathan P. Kastellec is an Assistant Professor in the Department of Politics at Princeton University. His article “Racial Diversity and Judicial Influence on Appellate Courts” appeared in the January 2013 issue of the American Journal of Political Science.